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The U.S. Supreme Court's June 2001 ruling, Zadvydas v. Davis, held that indefinite detention of certain removable aliens was unlawful if their removal was not likely in the reasonably foreseeable future, even if they were deemed to be a threat to the community or a flight risk. U.S. Immigration and Customs Enforcement (ICE) conducts post order custody reviews of removable aliens to determine if continued detention is in compliance with laws and regulations. ICE is to assure that aliens meet the conditions of their release. This report addresses (1) what information ICE has to assure that its custody reviews are timely and consistent with the Zadvydas decision and implementing regulations and (2) how ICE has assured that aliens released on orders of supervision have met the conditions of their release.

ICE does not have information that provides assurance that its custody reviews are timely and its custody determinations are consistent with the Zadvydas decision and implementing regulations. One reason ICE has difficulty providing assurance is that it lacks complete, accurate, and readily available information to provide deportation officers when post order custody reviews are due for eligible aliens. In addition, ICE does not have the capability to record information on how many post order custody reviews have been made pursuant to regulations and what decisions resulted from those reviews. Therefore, ICE managers cannot gauge overall compliance with the regulations for aliens who have been ordered to be removed from the United States. Although ICE is in the process of updating its case management system, ICE officials said that they did not know when the system will have the capability to capture information about the timeliness and results of post order custody reviews. ICE also does not have readily available information on how many aliens have been released on orders of supervision pursuant to the Zadvydas regulations, or whether these aliens have met the conditions of their release (i.e., periodically report to ICE and continue to seek travel documents from their home country). One reason for this is that ICE does not have the capability to track aliens' actions required by the conditions of their release. ICE officials also reported that ICE has a shortage of deportation staff, but they did not know how many staff are needed to manage the supervision caseload. Despite ICE's challenges in this area, ICE has not provided guidance to its field offices to help them prioritize deportation officer duties and supervision cases. Such prioritization could help ICE target its resources on those supervision cases that present the highest risk to public safety.

Recommendations for Executive Action

Status: Closed - Implemented

Comments: In July 2008, ICE provided GAO with a demonstration of its new information system for recording data and generating reports on removable aliens. The new system--the Enforcement Alien Removals Module (EARM)--and supporting documentation provided by ICE, indicated that ICE had implemented the four parts of the recommendation. Specifically, in response to the first part of our recommendation--regarding ICE's information on detained aliens for whom 90- and 180-day post order custody reviews are due--the EARM can generate post order custody review reports for aliens who have been in detention up to 90-, 180-, and over 180 days. ICE implemented the second part of our recommendation--regarding its ability to determine how many post order custody reviews were made pursuant to the Zadvydas Supreme Court decision and what decisions resulted from those reviews--as a byproduct of its implementation of the first part of our recommendation. This is because ICE can now determine which aliens have been in detention for at least 180 days, and considers anyone who has had a final order of removal for over 6 months to be a Zadvydas case. With respect to the third and fourth parts of our recommendation--regarding ICE's ability to determine which aliens are released on orders of supervision, and when they are to report to a deportation officer--ICE officials provided explanations and a demonstration of how deportation officers can call up the dates that specific aliens on orders of supervision are scheduled to report to them. Using the new EARM, if the deportation officer entered a "call up" indicating that an alien was to report to the officer on a certain date, and the alien failed to do so, the system will alert the officer that the alien did not show up. This feature did not exist in the previous information system. ICE officials said they sought to make the EARM user friendly; and convened working groups, detailed staff to test the application, and had management involvement and support to ensure that it would meet the needs of users.

Recommendation: To help assure that ICE's custody reviews are consistent with the Zadvydas decision and implementing regulations, and to promote the effective supervision of released aliens, the Secretary of Homeland Security should direct the Assistant Secretary for ICE, consistent with the department's evolving systems integration strategy, to ensure that ICE has complete, accurate, and readily available information on (1) all detained aliens for whom 90- and 180-day post order custody reviews are due, (2) how many post order custody reviews have been made pursuant to the Zadvydas regulations and what decisions resulted from those reviews, (3) which aliens are released on orders of supervision, and (4) when aliens released on orders of supervision are required to report to an ICE deportation officer.

Comments: In our May 2004 report, we stated that ICE officials did not know how many staff would be needed to handle the supervision caseload of deportation officers. We noted that ICE had acknowledged that its detention and removal program did not have a reliable method for determining what the ratio of cases to deportation officers should be. In response to our recommendation, the report states that the Assistant Secretary for ICE said that ICE will develop a methodology and model to assess the number of staff necessary to effectively manage its alien docket and use the results of this assessment to support funding and staffing requests. In June 2008, ICE sent a letter to GAO stating that it uses a national budget model to determine the staffing levels needed to manage the detained alien population. In July 2008, ICE sent a letter to GAO stating that in fiscal years 2005 through 2008, ICE used a uniform template for assessing staffing needs. We are closing this recommendation as not implemented because ICE did not develop a methodology that specifically addressed our recommendation.

Recommendation: To help assure that ICE's custody reviews are consistent with the Zadvydas decision and implementing regulations, and to promote the effective supervision of released aliens, the Secretary of Homeland Security should direct the Assistant Secretary for ICE, consistent with the department's evolving systems integration strategy, to develop a methodology for assessing how many staff are needed to manage the supervision caseload and other duties assigned to deportation officers, and use the results to support funding and staffing requests.

Comments: In November 2004, ICE's Acting Director issued a policy memorandum to ICE Field Office Directors addressing the Order of Supervision issues that GAO raised in its report. The memorandum prescribes the appropriate reporting intervals for specific categories of aliens released on orders of supervision. For instance, Field Offices are instructed to require criminal aliens to report once very month; legal permanent residents to report every 2 months (if they have been involved in crimes involving moral turpitude), noncriminals who entered without inspection, are legal permanent residents, or visa overstays to report once every 3 months; and asylum applicants to report once every 6 months. This policy allows for stricter reporter requirements to be imposed on aliens who pose a possible threat to the community, including aliens whose release is mandated under the Zadvydas decision. By issuing the policy memo in 2004, and following it up in September 2006 with another memo reminding Field Office Directors to follow the guidance, we consider ICE to have fully implemented our recommendation.

Recommendation: To help assure that ICE's custody reviews are consistent with the Zadvydas decision and implementing regulations, and to promote the effective supervision of released aliens, the Secretary of Homeland Security should direct the Assistant Secretary for ICE, consistent with the department's evolving systems integration strategy, to develop and disseminate guidance that will enable deportation officers to prioritize ICE's caseload of aliens on orders of supervision so that ICE can focus limited resources on supervising aliens who may be a threat to the community or who are not likely to comply with the conditions of their release.